An Update On The Aboriginal Heritage Act Regime

As a result of the backlash in response to the Aboriginal Cultural Heritage Act 2021 (WA) (ACH Act), the Western Australian Government made the decision to repeal the ACH Act (despite it only being in force for 1 month) and revert back to the Aboriginal Heritage Act 1972 (AH Act) with some amendments.

The changes were designed to bolster the role of Aboriginal people in the section 18 consent process as well as modernise an outdated and out of touch piece of legislation. Whilst arguably the amendments significantly fall short of the due diligence processes and protection the ACH Act afforded Aboriginal cultural heritage, landowners should expect to be engaging in a due diligence process not dissimilar to that in the ACH Act in the context of section 18 applications.

This article provides high level overview of the key amendments to the AH Act, as well as practical implications of the Consultation Policy.

Key amendments

Transfer of section 18s

Historically under the AH Act, there was no ability to transfer an approval under section 18. The introduction of section 18B now allows for a section 18 consent to be transferred between landowners. This amendment effectively preserves an existing consent and allows for it to be amended to ensure it continues to have its intended effect. It should be noted that if a new landowner wishes to undertake the land use in a different manner, or location not anticipated by the original consent, then they will need to lodge a new section 18 notice.

Third party appeal rights

The previous AH Act provided a mechanism for an aggrieved landowner to apply to the State Administrative Tribunal (SAT) for a review of a section18 decision. That right did not extend to native title parties who may have been impacted by the same decision. Now, as a result of the amendments, section 18(5) provides that same mechanism to the native title party. Relevantly, the term ‘native title’ party now extends to a number of entities, and depending on the circumstances may include

• a regional corporation
• a registered native title body corporate;
• a registered native title claimant; or
• a prescribed person or a person of a prescribed class.

Premiers call in-power

The Premier can now call in an application to SAT if the Premier considers that the application raises issues of State or regional importance.

New information provision

It is now a condition on all section 18 consents that the landowner must notify the Minister within 21 days (via the Acknowledge portal) of any new information about the Aboriginal site, that is subject to the consent. Importantly, this new information may relate to a new site, or an existing site. Some examples of ‘new information’ may include:

• the age of a site; or
• the significance or characteristics of the site; or
• information that would mean section 5 of the AH Act now applies (where it previously didn’t at the time the consent was given).

The Minister may then, having regard to the general interest of the community, either:

• amend the conditions to which the consent deals with;
• revoke the consent;
• revoke the consent and issue a new consent; or
• confirm the consent.

Gag clauses are unlawful

A provision of a contract or other agreement that prohibits, has the effect of prohibiting, or in any way supresses the native title party’s ability to exercise its rights under section 18 will now be void (regardless of when the agreement was entered into).

Consultation requirements

In a massive backstep from the comprehensive consultation requirements under the ACH Act, the State Government has not changed the lack of consultation requirements under the AH Act, instead choosing to release a ‘Consultation Policy’ (Policy). That being said, the Policy does make it clear that if consultation is not undertaken in accordance with the Policy, then the Minister or Registrar may defer making a decision on a section 18 application until appropriate consultation is carried out.

What this means, in a practical sense, is the landowner will be required to produce evidence of the consultation undertaken, and may reasonably include:

• copies of correspondence with the relevant native title party or knowledge holders;
• copies of any presentations given;
• meeting minutes; and
• heritage survey reports.

Lavan comment and take aways

What is being made abundantly clear, is that it may no longer be enough to simply discharge your due diligence obligations under the legislative requirements. Best practice and stakeholder expectation is requiring business to implement cultural heritage practices beyond what is set out in the AH Act. Landowners and proponents/developers will need to consider their commitment to, and protocols on, how best to consult and engage with Aboriginal parties in the management of their cultural heritage.

Some other key takeaways are:

• Proponents should be mindful that despite having a section 18 consent, given the amendments, a consent can be cancelled, suspended, or amended under the new AH Act. It is therefore of paramount importance that appropriate consultation and engagement is undertaken in order to mitigate that risk.
• Given the application of section18(5A) proponents should be mindful that regardless of what contract arrangements have been entered into between the parties, the native title party may now voice an objection, raise new information or make an application for review.
• With regard to the transfer of section 18 consents, Landowners should be mindful that the Minister can amend the consent, having regard to the new landowner, and whether the original consent and conditions are still consistent with the original intended effect.
• Landowners and proponents should be aware that they will be required to carry out both a desktop Aboriginal heritage assessment as previously required under the AH Act, as well as a broader and more comprehensive consultation with the relevant Aboriginal people.  This is only required prior to submitting a section 18 application.

If you have any queries in relation to recent amendments, please contact Jessica Pollock and the First Nations Practice group to discuss.